New South Wales Court of Appeal CITATION: Wyllie & Ors. v. Tarrison Pty. Limited & Ors. [2007] NSWCA 95 HEARING DATE(S): 13 April 2007 JUDGMENT DATE: 13 April 2007 JUDGMENT OF: Hodgson JA at 1 EX TEMPORE JUDGMENT DATE: 13 April 2007 DECISION: 1. Notice of Motion dismissed. 2. Order that Tarrison Pty. Limited pay the costs of the appellants and Mr. Kane of the Notice of Motion. CATCHWORDS: PROCEDURE - Application for extension of time to bring cross-appeal - Relevant considerations CASES CITED: Gallo v. Dawson (1990) 93 ALR 479 William Anthony Wyllie - 1st appellant Vengreen Pty. Limited - 2nd appellant Sydney Harbour Seaplanes Pty. Limited - 3rd appellant PARTIES: Tarrison Pty. Limited - 1st respondent Ross Edward Seller - 2nd respondent Rensen Pty. Limited - 3rd respondent Mr. Peter Kane - proposed cross-respondent FILE NUMBER(S): CA 40136/06 Mr. C. Gillis (s) for appellants COUNSEL: Mr. D.K.L. Raphael for respondents Mr. D. Bernie for proposed cross-respondent (Mr. Kane) C.G. Gills & Co., Sydney for appellants SOLICITORS: Gibsons Lawyers, Sydney for respondents J.P. Capsanis & Co., Sydney for Mr. Kane LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2489/03 LOWER COURT JUDICIAL OFFICER: Hungerford ADCJ LOWER COURT DATE OF DECISION: 24 February 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40136/06 HODGSON JA Friday 13 April 2007 WYLLIE & ORS. V. TARRISON PTY. LIMITED & ORS. Judgment 1 HODGSON JA: I am dealing with a notice of motion filed on 28 March by the respondent Tarrison seeking an extension of time to file a cross-appeal against Mr Kane. 2 Judgment was given by the primary judge in the proceedings on 24 February 2006; and pursuant to that judgment the primary judge gave judgment for Tarrison against the appellants for a total of about $187,000, and gave judgment for Mr Kane against Tarrison. Later on, the primary judge ordered Tarrison to pay Mr Kane's costs. 3 An appeal was brought by the appellants, and the notice of appeal containing the grounds of appeal was filed on 20 June 2006. 4 Some time ago the matter was fixed for hearing on 15 and 16 May 2007. 5 The situation is that, about a month before the hearing of quite a complex matter, I am dealing with a notice of motion to bring a cross-appeal, with the notice of motion being brought about eight or nine months after this cross-appeal should have been lodged. 6 The explanation for this is that counsel for Tarrison initially advised against an appeal against Mr Kane, but more recently, in the light of the appellants' submissions and further consideration of the matter, counsel has formed the view that the appeal has reasonable prospects of success. I accept that this is a bona fide explanation, and I accept that different views held by counsel at different times may not be unreasonable. I take the view that this explanation does not preclude the grant of an extension of time, but it is not one that strongly supports it. 7 Mr Bernie for Mr Kane referred me to a decision of McHugh J in Gallo v Dawson (1990) 93 ALR 479, which supports the proposition that a case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal, simply because an applicant has refrained from appealing until he or she has researched the issues involved. That is not exactly the situation here, but it does have some similarities to it. 8 In that judgment, McHugh J also said that in considering an application for an extension of time of this kind, it is necessary to consider the prospects of the applicant succeeding in the appeal, and to bear in mind that, upon the expiry of time for appealing, the respondent has a vested right to retain a judgment unless the application is granted. 9 In those circumstances, it seems to me appropriate to give some consideration to the prospects of success of the proposed appeal and to any prejudice that might be caused to Mr Kane through the lateness of the application, and to take a general view of what the justice of the case requires. 10 Mr Bernie accepts that it would be possible to prepare for the hearing of the appeal. He submits that, if the extension of time is granted, Mr Kane should have security for costs; and Mr Raphael for Tarrison accepts that it would be appropriate that in the circumstances Tarrison be required to provide security for $30,000. 11 Mr Gillis, who is solicitor for the appellants, has foreshadowed that if an extension of time was granted, the appellants would seek leave to litigate in the appeal the question of contribution from Mr Kane. It seems to me that that could greatly complicate the proceedings, because it appears there may be other claims arising from associated dealings between Mr Kane and the appellant Mr Wyllie; and if I were to grant leave, I would make it clear that any question of contribution between Mr Kane and Mr Wyllie would have to be litigated elsewhere. 12 There is some prejudice to Mr Kane in that it appears that a detailed bill of costs has been prepared in relation to the costs at first instance, the bill amounting to something over $100,000. That bill has not yet been assessed, and it would seem to be disputed. 13 Mr Raphael accepts that his cross-appeal would have no chance of success against Mr Kane unless the appellants' appeal fails. That is, Mr Raphael accepts that his case against the appellants is at least as strong and probably stronger than the case against Mr Kane. What is at stake for Tarrison in relation to its proposed cross-appeal against Mr Kane is the order for costs against it, and the possibility of enforcing a judgment in a similar amount to that it has against the appellants against Mr Kane as well, in case the appellants are unable to pay the judgment. 14 As to the latter matter, there is no evidence before me as to what this opportunity might be worth. That is, there is no evidence as to the likelihood of the appellants not being able to pay the judgment or of the likelihood of Mr Kane being able to pay it if the appellants cannot, so it is not possible for me to come to any view as to what the value of that aspect of the appeal is to Tarrison. 15 As far as the question of costs is concerned, it would appear that the costs are likely to be a substantial amount, although I do note that the Supreme Court Act provides that an appeal as to matters of costs can only be brought to the Court of Appeal by leave; so that if that question of costs was the only matter in issue, this would be an appeal that would require leave. 16 Having regard to all those considerations, I have come to the view that it is appropriate to assess the merits of the proposed appeal on a somewhat similar basis to that I would apply if this were an application for leave to appeal, and to consider whether I think the prospects of success are sufficient to justify the grant of the extension of time. 17 The arguments to be relied on have been put in writing, and I have read them, and it seems to me that in substance they depend on making good the assertion that the transfer of the aeroplanes the subject of the dispute to the company called Vengreen Pty Limited was a performance of the agreement dated 15 February 2002, this being the agreement guaranteed by Mr Wyllie and Mr Kane. 18 Although of course I could not come to a final view on this without hearing full argument, it does seem to me that there are very powerful considerations against that view, in particular the consideration that the company Purpleway Pty Limited is identified in the agreement of 15 February 2002 as the purchaser, and that agreement itself contains what is called a covenant by the vendor that "all property right and title in and to the goods and each item thereof hereby passes to the purchaser," suggesting that the property in the aeroplanes by force of that agreement itself passes to Purpleway Pty Limited. 19 Mr Raphael relies on the inclusion in that sale agreement of the words "or nominee," but they do not affect the definition of the purchaser, and it seems to me very difficult to say that they would affect the operation of the provision I have described. 20 The other consideration that in my view operates very powerfully against the contention sought to be relied on is that at the time when an offer was made by Tarrison to sell the aeroplanes to Vengreen, Tarrison completed a statutory declaration which, amongst other things, said that the goods, that is the aeroplanes, were Tarrison's "own absolute property" free from, amongst other things, any "hire/asset purchase agreement," this in my opinion operating very strongly against the view that the agreement of 15 February 2002 was then being given effect to. 21 Having regard to those considerations, I have reached the view that the proposed appeal against Mr Kane has insufficient prospects of success to justify granting the extension of time which is now sought. 22 For those reasons I dismiss the notice of motion and I order Tarrison Pty Limited to pay the costs of the opponents, that is the appellants and Mr Kane, of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.